Ajit Singh and ors. vs Baldev Singh

A.S. Nehra, J.

This revision petition is directed against the order dated 2891992 passed by Additional Sessions Judge, Kapurthala vide which the revision petition filed by the respondent was dismissed and proceedings under Section 145 of the Cr.P.C. were ordered to be dropped.

A complaint under Section 145 Cr.P.C. was filed on 2451989 by SHO Bholath stating that there is a dispute between both the parties with regard to the building of Bhagat Singh situated in village Begowal bearing Khasra No. 60/22/2 measuring 2 Kanals 17 marlas with six shops, two stores, two kitchens, two bath rooms, two latrines, one chaubara on the first floor, four rooms, two verandas, etc. It was mentioned in the complaint that there was an apprehension of breach of peace, therefore, the dispute property be attached under Section 145 Cr.P.C. After hearing the parties and inspecting the spot, Executive Magistrate, Kapurthala passed an order attaching the property in dispute on 2671989 and Naib Tehsildar was appointed as receiver to take over possession of the disputed property.

Parties led their evidence. After considering oral and the documentary evidence on the record, the learned Magistrate passed the following order :

"I agree with the version that the widow of the deceased is in possession of shops and house etc. and is living there in alongwith Baldev Singh. As regards the other four shops, all 6 brothers are in joint possession. It is, therefore, not proper to cancel the attachment order passed previously. Because the cases are pending in the Civil Court and also with the AC Ist Grade, Kapurthala for partition etc. the attachment will, therefore, continue till the decision of the competent court. The receiver already appointed will continue to discharge his duties for making management of these shops."

Aggrieved by the order date 351990 passed by the Sub Divisional Magistrate, Kapurthala, Baldev Singh respondent filed a revision petition in the court of Shri G.S. Kalra, Sessions Judge, Kapurthala. Upon the application of Baldev Singh, Shri G.S. Kalra, Sessions Judge, passed an order on 2161990 that the possession shall remain with Baldev Singh and he was ordered to be appointed as receiver till the decision of the revision petition.

Aggrieved by the order dated 2161990 the respondents filed a criminal miscellaneous No. 8571M of 1990, in which the following order was passed on 1371990 by this court :

"Dispute regarding possession over and title to the property in dispute being already pending in the Civil court, criminal court obviously erred in assuming jurisdiction and vesting Baldev Singh of his possession over the four disputed shops instead of appointing Baldev Singh as receiver, learned Additional Sessions Judge would be deemed to have ordered restoration of possession to him because it was illegally obtained from him by the receiver with reference to the order of the SDM. Learned Additional Sessions Judge having corrected the error of law, indulged in by the SDM vide his impugned order of 2161990, I see no ground to interfere. Dismissed."

The order passed by this Court was not challenged by the parties and the same has become final and is binding upon the parties. Learned counsel for the petitioner has contended that learned Sessions Judge has erred in law in not deciding the revision petition on merits.

Learned counsel for the respondent No. 2 has contended that the dispute regarding possession and title to the property in dispute is pending in the Civil Court and therefore criminal court can not assume jurisdiction. In support of his argument, he has relied upon Supreme Court decision in Dharam Pal and ors. v. Smt. Ramshri and ors., 1993(1) Recent Criminal Reports 696 (SC): 1993(1) CLR, 403 wherein it has been held as under :

"It is obvious from subsection (1) of section 146 that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof." The determination by a competent Court of the rights of the parties spoken of, there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent court passes an order of interim injunction or appoints a receiver in respect of the subject matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate. The proviso to subsection (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute". When a civil court passes and order of injunction or receiver, it is the Civil Court which is seized of the matter and any breach of its order can be punished be it according to law. Hence on the passing of the interlocutory order by the civil Court it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute".

After hearing the learned counsel for the parties, I hold that when a civil litigation is pending between the parties, resort to criminal proceedings is not called for.

In view of the above discussion, there is no merit in the revision petition and the same is dismissed.